Counsel for the defence

Continuing our debate on the reform of the criminal justice system, Courtenay Griffiths, QC, who represented one of those acquitted of killing Damilola Taylor, warns of further erosion of the rights of the accused

There is a fallacy at the heart of much of the debate which led to the last week's White Paper on Criminal Justice. The suggestion is that more offenders are getting away with their crimes and evading punishment. The criminal courts, defence lawyers and 'arcane' rules governing the admissibility of evidence are held in differing measures to blame for this crisis. They are the parts of the criminal justice system in need of a major overhaul, in order to restore public confidence in the system.

That reasoning disguises more than one paradox however. How is it that despite the supposed slump in conviction rates, the prison population is soaring? Furthermore, how does this thinking explain the fact that most defendants plead guilty - 95 per cent in the magistrates' courts and 74 per cent in the Crown Court? When it is further taken into account that of the 26 per cent of contested cases in the Crown Court, on average nationally 50 per cent result in a conviction, it would appear that the courts are doing a pretty good job in ensuring that the guilty get their just desserts.

The reality is that the gradual erosion of safeguards - developed by the courts over the centuries to protect defendants from wrongful conviction - in order to make conviction easier, a process which has been gathering pace over the past two decades, has not resulted in the expected fall in crime, and perhaps more importantly has not reduced the public perception that crime is out of control. The reason is that there is no such simple equation that guarantees that convicting and imprisoning more offenders will result in a reduction in crime. Indeed, removing safeguards which protect the innocent from wrongful conviction, which result in miscarriages of justice, will do immeasurably more harm in the long term to the confidence and respect in which most citizens still hold the courts and our system of criminal justice. The logic just does not work, so there must be another underlying motive for this zeal to reform the criminal justice system.

It is important for the Government to be seen to be getting 'tough on crime'. Appearance rather than substance often informs much of what this Government is about and, like a Hollywood set, appearances can be deceptive. It is easy to forget, when one considers the proposals in the White Paper, that this was the Government that incorporated the European Convention on Human Rights into the law of the United Kingdom. Yet it is a fact of contemporary life that, in terms of law and order, the present Home Secretary, and his predecessor, Jack Straw, have outdone Michael Howard in their willingness to curtail rights for purely political objectives. How ironic that we must now look to Peter Lilley MP to find a champion for British liberties. In a recent paper, published by the Adam Smith Institute, he remarks that: 'The current Government and the European Union are in the process of introducing new laws which would undermine the liberties on which British people have depended for so long. The attack on these liberties, though partly a misguided attempt to achieve laudable aims, is being fuelled by an unprecedented alliance between tabloid populism (to sound tough on crime) and modernising zeal. But the net result is to make British people more vulnerable than ever to arbitrary action by the State.'

So it was left to Oliver Letwin MP to speak in the language of rights during Wednesday's debate on the White Paper.

I cannot escape the conclusion that the Human Rights Act was introduced as a fig leaf to hide New Labour's designs on the label of 'The Party of Law and Order', which for so long was the preserve of the Conservative Party. Now in their second term of office, as if there were not signs enough in their first, the fig leaf has been removed and their private parts are finally fully exposed. They want to secure Daily Mail territory for New Labour.

Attacks upon the system of trial by jury have been at the heart of this Government's reforming plans for the criminal justice system. Twice during the course of the last Parliament, an attempt was made to force through the Criminal Justice (Mode of Trial) Bill - despite the important legitimating function that trial by jury plays in a diverse society, in the acceptance by ordinary people of the justice dispensed in our criminal courts. Consent informs the idea of trial by jury. Now, by stealth, the same result is sought in the White Paper, in particular in the proposal to increase the sentencing powers of magistrates, which Lord Falconer accepts is designed to shift more work to the magistrates' courts.

In the same vein it is proposed that trials of complex fraud cases would be conducted without juries. After Enron and WorldCom, would the public stomach executive justice for corrupt executives? Some might say that with ordinary people's pensions and savings at stake, the case for having a jury becomes all the more compelling. Further, do judges want to be accused of looking after their own class, when a middle-class executive is acquitted?

I am convinced that the Government's commitment to reducing the number of cases tried by a jury is driven by Treasury considerations. Trial by jury is expensive, and the spectre of the Chancellor of the Exchequer looms over all of New Labour's actions.

This Government's attitude to rights is further demonstrated in the proposal to abolish the 'double jeopardy' rule. This is a most cynical exploitation of the case of Stephen Lawrence. Of course it was humiliating and frustrating for the Lawrence family, after so many years of struggle to highlight the injustice they had suffered, to see the alleged killers of their child defiantly flaunting the fact that they were now outside the law's reach. Yet a rule which has served us well over so many centuries should not be jettisoned because of one experience - however dreadful. The potential consequences are even graver. The assumption at a re-trial, brought about because of the emergence of 'new and compelling' evidence, would be that the defendant(s) was necessarily guilty. How would such a natural assumption square with the idea of innocence until proven guilty? How would the publicity of a previous trial be dispelled? It is suggested that such a power would only be exercised in a small number of cases, but it is precisely in the high-profile cases where an acquittal results that the public clamour for a re-trial would be greatest. How would the jury at the re-trial dismiss from their minds the publicity surrounding the first trial?

Consider also the proposal that juries be told of the previous convictions of defendant's in criminal cases. Which group in British society has been systematically criminalised over the past three decades? Who in consequence will be disproportionately affected by such a change? Which group within our society already makes up 20 per cent of the prison population in England and Wales, when they constitute a mere 5.5 per cent of the total population? Whose numbers are, therefore, likely to increase in our prisons as a result of a measure such as this?

Trial by jury, double jeopardy and the admission of a defendant's previous convictions are the issues raised in the White Paper which have so far grabbed the headlines. However, hidden away in the sub-clauses are a number of other proposals which should set alarm bells ringing. Proposals contained in clause 3.52 of the White Paper would widen the matters on which an inference from the accused's silence could be drawn. At 3.57, this appears: 'We also wish to make it a requirement for the defence to provide, in advance, details of any unused expert witness reports. We are currently considering introducing legislation to make it a requirement that they must disclose details of any witness that the defence may call.'

Imagine, then, this scenario. The defence instructs an expert whose opinion is adverse to the defendant. The defence would none the less be required to serve such a report on the prosecution who could then call the expert as part of the prosecution case. In effect the defendant would be producing material with which to prosecute himself. What happened to that 'golden thread' which says that the burden of proving guilt lies on the prosecution?

People are concerned about crime, in the main because they are misinformed about it, and further because it makes for sensational headlines which further ratchet up public concerns. A reasoned debate about crime must begin from the realisation that there is little that Government agencies can directly do to prevent it.

Perhaps the most pertinent contribution the Government has made to future crime reduction was the announcement by Gordon Brown earlier last week of a massive increase in expenditure on education. A disproportionate number of those warehoused in our prisons had spent time in care or were illiterate. Instead of 'tough on crime, tough on the causes of crime', the mantra should be 'education, education, education', and the provision of greater resources for the nurturing of our children.